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25 Dudley Street UBEX-12-00100008 Staff Memo MEMORANDUM TO: Alan Jensen City Attorney FROM: Erika Hall Principal Planner DATE: February 24, 2012 SUBJECT: Request for legal opinion regarding status of grandfathered nonconforming use that has lapse of three (3) years in local business tax. In reviewing Mr. Chaney’s request for a use-by-exception to “continue” a nonconforming use of heavy automotive repair within the Commercial General (CG) zoning district at 25 Dudley Street, I find the following: The previous uses of both the subject property (25 Dudley Street) and Mr. Chaney’s adjacent property to the north (44 Dutton Island Road West) were both legally established uses when, on December 11, 2006, Ordinance Number 90-06-197 was adopted in part, to prohibit “heavy automotive repair” within the CG zoning district. Thus, these uses became nonconforming, and subject to the provisions of Section 24-85 of the Land Development Regulations regarding the treatment of nonconforming uses. Mr. Chaney has submitted copies of documents issued by various county and state agencies to his business establishment addressed at 25 Dudley Street, but review of the Atlantic Beach Local Business Tax records maintained by the City Clerk indicate that there has not been an active tax receipt issued for this address since 2008, nor has one been issued for his adjacent property at 44 Dutton Island Road West since 2009. Therefore it would seem there has been a lapse of operation – according to Atlantic Beach records, beyond that necessary to maintain the nonconforming use as “grandfathered”. The opinion I seek is a determination of the following: Does the failure to maintain a local business tax receipt over an extended (multiple year) period of time substantially qualify as a failure to “remain otherwise lawful”, and therefore cause for discontinuance of a nonconforming use? Or, alternatively, does the provision of other documentation issued by agencies beyond the Atlantic Beach jurisdiction substantially qualify as proof of intent and attempt to “remain otherwise lawful”, and therefore cause for continuation of a nonconforming use? Below are applicable definitions and provisions I have relied upon in my research. Automotive repair, heavy, shall mean the repair, rebuilding or reconditioning of motor vehicles or parts thereof, including collision service, painting and steam cleaning of vehicles. [Section 24-17, Definitions] Nonconforming use shall mean the use of a structure or building or portion thereof, or land or portion thereof, which does not conform with the land development regulations and / or comprehensive plan future land use map designation applicable to the lands in which the use is located, but which was legally established prior to the effective date of such land development regulations or comprehensive plan. [Section 24-17, Definitions] The nonconforming use of neighboring lands, structures, or buildings in the same zoning district, or the permitted use of lands, structures or buildings in other zoning districts shall not be considered as justification for the approval of a use-by-exception. [Section 24-63(j), Use-by-Exception] Nonconforming uses [Section 24-85(d), Nonconforming Lots, Uses and Structures] Uses of land which were lawfully created at the time such uses were established, but which would not be permitted by the restrictions imposed by these land development regulations or by restrictions imposed by the comprehensive plan, may be continued so long as they remain otherwise lawful and in compliance with the provisions of this section. A nonconforming use shall not be moved in whole or in part to any other portion of the lot or parcel on which such nonconforming use is located, nor shall a nonconforming use be expanded or enlarged. In the event that a nonconforming use of land is discontinued or abandoned for a period of six (6) months or longer, any subsequent use of such land shall conform to the applicable zoning district regulations as set forth within this chapter as well as applicable provisions of the comprehensive plan. A use-by-exception may be approved only for those uses and activities, which are expressly identified as a possible use-by-exception within a particular zoning district. [Section 24-63, Use-by-Exception] Attached are copies of the following: Regarding 25 Dudley Street… Atlantic Beach Local Business Tax Receipt issuance history for 25 Dudley Street (subject property). Bill of Sale for business known as C & C Garage a/k/a C & C Garage & Tire at 25 Dudley Street, dated August 30, 2007. Duval County Business Tax Receipt (#1000020485), valid September 1, 2008 through September 30, 2009, for C & C Garage Inc at 25 Dudley Street. FL-ACS Motor Vehicle Repair Registration Certificate (MV71643), valid September 24, 2008 through September 24, 2010, for C & C Garage Inc at 25 Dudley Street. US-Dept of Treasury/IRS notice of Employer Identification Number (27-4573155) for Chaney’s NAPA Auto Care & Body Works LLC, dated January 18, 2011. FL-DOR Resale Certificate for Sales Tax, valid through December 31, 2011, for Chaney’s NAPA Auto Care & Body Works LLC at 25 Dudley Street, dated February 2, 2011. FL-ACS Motor Vehicle Repair Registration Certificate (MV82756), valid February 22, 2011 through February 22, 2013, for Chaney’s NAPA Auto Care Center & Body Works LLC at 25 Dudley Street. Duval County Business Tax Receipt (#1000044130), valid September 1, 2011 through September 30, 2012, for Chaney’s NAPA Auto Care Center & Body Works LLC at 25 Dudley Street. Regarding 44 Dutton Island Road West… Atlantic Beach Local Business Tax Receipt issuance history for 44 Dutton Island Road West (adjacent property). Bill of Sale for right, title and interest in shares of businesses known as East Coast Custom & Collision, Inc and Atlantic Beach Custom & Collision, Inc at 44 Dutton Island Road West, dated June 10, 2009. City of Atlantic Beach Water & Sewer Bill for 44 Dutton Island Road W, dated September 14, 2011.